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AFRICA: Judicial constraints undermine reform efforts
. Oxford: Jan 06, 2009. pg. 1
The significance of and outlook for African judiciaries.
Judiciaries in most African countries face considerable constraints. The lack of a strong and autonomous judiciary has empowered many African presidents and undermined anti-corruption efforts.
Copyright Oxford Analytica Ltd. 2009. No publication or distribution is permitted without the express consent of Oxford
The significance of and outlook for African judiciaries.
Judiciaries in most African countries face considerable constraints. The lack of a strong and
autonomous judiciary has empowered many African presidents and undermined anti-corruption efforts.
The focus of donors on electoral politics has often deflected attention from other key democratic
institutions such as the police, judiciary and political parties ( see AFRICA: Anti-terror police powers prove
controversial - June 26, 2007 ). Parties are now receiving greater attention by donors ( see AFRICA: Why political
parties hinder democratisation - May 2, 2008 ). However, the judiciary remains relatively ignored, despite its key roles:
Conflict The creation of Special Tribunals and Truth and Reconciliation Commissions has become a ubiquitous feature of conflict resolution processes on the continent, from the end of apartheid in South Africa to the recent Kenya crisis ( see AFRICA: Local politics impedes international justice - January 18, 2008 ).
Constitutionalism Through the process of judicial review, judiciaries play a central role in ensuring the constitutionality of new legislation, and upholding the constitution more generally.
Corruption In most cases, judicial review also incorporates the right to review the legality of the actions of office-holders, giving judiciaries a major role in checking the abuse of power and supporting anti-corruption reforms ( see AFRICA: International links key to corruption battle - June 12, 2008 ).
Elections Judiciaries also hear electoral petitions, placing them at the centre of election controversies and accusations of electoral malpractice.
Courts are inherently vulnerable institutions because they lack both the power of the purse and the
sword. In Africa this is compounded by high levels of political manipulation and inadequate funding, placing judiciaries
in a state of permanent crisis which undermines the basic functioning of the rule of law:
Uganda Judges and lawyers went on strike in March 2007 to protest against a security services raid on the High Court, in which opposition figures were re-arrested after having been granted bail.
Kenya A scandal has erupted after a number of cheques issued by the judiciary bounced, forcing the suspension of
all non-essential judicial activities. Apparently, overtime payments to registry staff working to clear a backlog of appeal files created the financial crisis.
Sierra Leone The head of professional standards in the police recently claimed that the judiciary was to blame for the release of "hardcore" criminals. The judiciary has hit back, arguing that prisoners were discharged because the police failed in their responsibility to produce witnesses.
Since the return to multi-party politics, incumbents have frequently informed opponents that have rejected
the official results that they should address their concerns through the courts. However, the political influence exerted
over African judiciaries has resulted in a mixed performance with regards to elections:
Controversy Following the flawed polls in Kenya in late 2007, the opposition's lack of faith in the impartiality of the judiciary contributed to the decision to take their protests to the streets. President Mwai Kibaki had appointed six judges -- two to the Court of Appeal and four to the High Court -- just two days before the election, reinforcing an already pliant bench. The opposition was also aware that previous electoral petitions pertaining to the election of 2002 had been allowed to drag on until late 2007.
Human rights Lawyers in Zimbabwe have worked in harsh circumstances to protect opposition supporters following the flawed polls of 2008. Although the ZANU-PF government has deployed the security services against the opposition, judges have frequently freed individuals on the grounds of insufficient evidence. Zimbabwean Lawyers for Human Rights, which defends around 1,500 human rights activists every year, have won a number of high-profile cases despite the country's slide into authoritarianism.
Malpractice Despite the high centralisation of power under the president in Nigeria, the courts have proved willing to hand down judgements that have frustrated the government. Following the flawed elections of 2007, election tribunals ruled that a number of prominent political leaders won their seats illegally including eleven state governors. Nevertheless, the Supreme Court in December upheld the equally dubious victory of Umaru Yar'Adua in the presidential election in a split 4-3 decision.
The South African constitution guarantees the "independence, impartiality, dignity, accessibility and
effectiveness" of the courts:
Permanent judges are appointed by the president in consultation with the Judicial Service Commission and the leaders of all political parties represented in the National Assembly.
The ambitious South African constitution enshrines rights not only to basic human rights and civil liberties, but also to human dignity, equality, health care and education.
An 'activist' Supreme Court has played a strong role in forcing the government to meet its constitutional commitments in a number of areas, most famously ruling against the government that the drug nevirapine should be made available to all pregnant women to prevent mother-to-child transmission of HIV.
However, even in democratic South Africa there are real problems with judicial independence. Both former President Thabo Mbeki and his successor as leader of the ruling ANC, Jacob Zuma, have been accused of interfering with the judicial process ( see SOUTH AFRICA: Politics endangers judicial independence - September 2, 2008 ).
The limitations of African judiciaries have three main roots. Reform is unlikely to be effective without
coordinated input from opposition parties, non-governmental organisations and donors to target them directly:
In most African countries judges are appointed by the president with little parliamentary
scrutiny, and as a result most judiciaries lean towards the government. Effective reform would necessitate
constitutional reform to require cross-party agreement on the nomination of senior judges and strengthening their
security of tenure. An increasing number of organisations are prioritising justice system reform:
The International Institute for Justice and Development aims to launch an African Justice Survey soon to highlight the strengths and weaknesses of different justice systems.
The New Partnership for African Development has adopted a commitment to autonomous judiciaries.
However, to date Africa's leaders have proved unwilling to give up control over such an influential institution.
Judges are typically given limited resources, which in many cases prevents them from
employing a full staff -- restricting the number of cases that can be processed. The World Bank has targeted legal aid
funding with a particular focus on increasing the access of the disenfranchised to the judicial system.
However, as African governments struggle under severe fiscal constraints, and donors typically refuse to fund salaries, it seems unlikely that the financial constraints will be eased in the near future. Donor assistance to justice sector reform increased from 17.7 million dollars in 1994 to 110.0 million in 2002, indicating an increasing concern with the role of judiciaries, but the figure remains inadequate.
The role of the judiciary is hampered by weaknesses elsewhere in the system, most notably
low professional standards among the police force and a basic lack of capacity in the prison system ( see AFRICA:
Prison reform faces serious challenges - June 26, 2008 ). While the United States has adopted a renewed focus on
the professionalisation of the police and the armed forces as a result of the war on terror with some positive results,
prison reform remains a deeply unfashionable issue despite the efforts of organisations such as Penal Reform
The examples of Nigeria, South Africa and Zimbabwe demonstrate the considerable role judiciaries
can play in resisting authoritarian rule. However, unless opposition parties and donors focus on promoting the
autonomy and capacity of the judiciary, this potential will remain unrealised.
Indexing (document details)
Politics, Government, Courts, Reforms, Economic conditions, Foreign aid, Constitutions, Corruption, Elections, Legislation, Political dissent, Political parties, Police
Africa, Kenya, Nigeria, Sierra Leone, South Africa, Uganda, Zimbabwe, United States, US
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